Execution After Death Penalty Repeal "Unprecedented," State Supreme Court Told

Preserving capital punishment for crimes committed before the legislature's abolishment of the death penalty is at odds with "evolving" standards of decency in Connecticut, an attorney for convicted killer Eduardo Santiago said in a legal filing this week to the state Supreme Court which has agreed to take up the issue of whether the repeal of the death penalty can apply only to future crimes.

Executing someone after the repeal would be "unprecedented," Assistant Public Defender Mark Rademacher said in a supplemental brief filed on behalf of Santiago, who faces the death penalty for the killing of Joseph Niwinski in West Hartford in December 2000.

No one faces execution in New Jersey and Illinois after recent death penalty repeals in those states and New Mexico has not carried out any executions since a 2009 repeal even though a former governor of that state declined to commute the death sentences of two remaining condemned killers, Rademacher wrote.

Governors in New Jersey and Illinois commuted the existing death sentences after the repeals in those states. In New Mexico, the two remaining death sentences continue to be challenged and no execution dates have been set. According to Connecticut law, the Board of Pardons and Paroles -- not the governor -- has the authority to commute a death sentence to life in prison.

Connecticut lawmakers abolished the death penalty in April but kept in place the death sentences imposed on current death-row inmates.

"A search of the historical record has revealed no jurisdiction in the history of the United States that executed an offender after renouncing capital punishment," Rademacher wrote. "An execution carried out in the face of this judgment would plainly be cruel and unusual punishment and would violate the statutory prohibition against arbitrary death sentences and the constitutional prohibitions against arbitrary criminal laws that are unsupported by legitimate penological objectives."

Executing someone in a state that has renounced capital punishment is "inconsistent with contemporary standards of decency," Rademacher argues. "When state lawmakers had the opportunity to vote for an amendment that would 'send a message' that carrying out existing death sentences took priority over abolishing capital punishment, a majority of them chose instead to send the message that abolition was their paramount goal," he wrote.

The state Supreme Court agreed in September to take up the new law's prospective issue when it granted a request by Santiago, whose death sentence was overturned in June, for written briefs and arguments that raise questions about the constitutionality of capital punishment for those who committed capital crimes before the law was passed last April.

The state has 60 days to respond. A hearing could be held sometime early next year.

In June, the state Supreme Court ordered a new penalty phase for Santiago, saying the trial judge, Elliot Solomon, failed to disclose "significant and relevant" mitigating evidence for jury consideration when they decided to send Santiago to death row in 2005 for shooting Niwinski, 45, in the head as he slept in his West Hartford apartment on Dec. 14, 2000. Prosecutors say he was carrying out a murder-for-hire scheme in exchange for a broken snowmobile.

Prosecutors have not opposed Santiago's request to challenge the repeal's impact on his case and the state and attorneys for death-row inmates have said they expected the matter of the repeal's prospective provision to go to the Supreme Court.

During the death penalty debate, some legislators questioned whether a prospective repeal would stand up in court. The provision was added following the high-profile trials of Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky. Both men are currently on death row.

In Rademacher's brief, he cites the testimony of Connecticut's top prosecutor, Chief State's Attorney Kevin Kane, about the prospective provision to legislators in March 2012 during hearings on the repeal.

Kane said, "If it is passed in this form and it's prospective and a crime occurs the day before it becomes effective my feeling is…I know I won't seek the death penalty for a crime that occurs the day before it becomes effective. I think that would be arbitrary. And I wouldn't – just wouldn't plain feel right doing it."

Rademacher also in his brief references transcripts from legislators' debates about the death penalty repeal, highlighting discussions at the Capitol that raised doubts about the legality of future executions.

Rademacher argues that the date of the crime has nothing to do with culpability and has no basis for determining whether death is the appropriate punishment.

"Nothing could be more arbitrary and capricious. As the chief state's attorney confirmed in his testimony, it would be both 'arbitrary' and wrong to seek a death sentence based on the date of the crime because the date of the crime does not provide a "fundamental, moral distinction' between crimes that can call for death and crimes that cannot," Rademacher wrote.

Kane declined to comment Thursday.

In his March 2012 testimony before the legislature, Kane also told lawmakers that prosecutors have an obligation to uphold the law.

"We've got to think of…do we have an obligation as -- as attorneys -- state's attorneys who have taken an oath to uphold the law, do we have an obligation to argue and let the court decide whether or not it's -- it's prospective only. That's going to be a difficult decision for us to make but we'll weight it, whether it's composable, it's unethical and a legal decision," Kane said, according to a transcript of the hearing.

Meanwhile, testimony is expected to resume Monday in the landmark court case that challenges the death sentences of five of Connecticut's 10 death-row inmates based on racial and geographic bias.

Judge Samuel J. Sferrazza put the case, which began in September, on hold because of a witness' travel plans.

The condemned killers - Sedrick Cobb, Todd Rizzo, Daniel Webb, Robert Breton Sr. and Richard Reynolds – raised the prospective issue before their trial began but Sferrazza rejected their request to bring up challenges based on the law's repeal, saying the issue could be raised in a separate petition without delaying the trial.